Michaelmas Term
[2022] UKSC 31

JUDGMENT
REFERENCE by the Lord Advocate of devolution issues
under paragraph 34 of Schedule 6 to the Scotland Act
1998
beforeLord Reed, President
Lord Lloyd-Jones
Lord Sales
Lord Stephens
Lady Rose
JUDGMENT GIVEN ON
23 November 2022
Heard on 11 and 12 October 2022

Appellant
Dorothy Bain KC
Tom Hickman KC
Christine O’Neill KC
Paul Reid(Instructed by Scottish Government Legal Directorate)
Respondent
Sir James Eadie KC
David Johnston KC
Chris Pirie KC
Christopher Knight(Instructed by the Office of the Advocate General for
Scotland)Intervener
Claire Madison Mitchell KC
David Welsh(Instructed by Livingstone Brown Limited (Glasgow
City))

LORD REED, LORD LLOYD-JONES, LORD SALES, LORD STEPHENS AND LADY ROSE:
1.
Does the Scottish Parliament have power to legislate for the holding of areferendum on Scottish independence? That is the subject-matter of a reference by
the Lord Advocate, the senior Law Officer of the Scottish Government, to this court
under paragraph 34 of Schedule 6 to the Scotland Act 1998 (“the Scotland Act”), as
amended. But the Advocate General for Scotland, the Scottish Law Officer of theUnited Kingdom Government, has raised two preliminary issues. First, is the question
referred by the Lord Advocate a “devolution issue”? If not, it cannot be the subject of areference under paragraph 34 of Schedule 6. Secondly, even if the question is adevolution issue, should the court nevertheless decline to accept the reference in theexercise of its discretion?
2.
There are accordingly three questions which the court must consider: first,
whether the question referred by the Lord Advocate is a devolution issue; secondly, if
it is, whether the court should accept the reference; and thirdly, if so, how thequestion should be answered. It is logical to consider the questions in that order, since
if either of the first two questions receives a negative answer, the third question does
not arise.
3.
This is the judgment of the court. We begin by explaining the background to thereference (paras 4-11). We then set out the question referred (para 12). We thenconsider whether the question referred is a devolution issue (paras 13-47). We next
consider whether the court should accept the reference (paras 48-54). We thenconsider how the question should be answered, addressing first the arguments
presented by the Lord Advocate (paras 55-83), and then those presented by the
Scottish National Party (paras 84-91). The Scottish National Party has exceptionallybeen permitted to intervene, notwithstanding that it is the party forming the Scottish
Government in which the Lord Advocate is a minister, so that the court can consider awide range of arguments. Finally, we give our answer to the question referred (para92).
1.

The background to the reference

4.
First, the background to the reference should be briefly explained. The Scottish
National Party, which is committed to Scottish independence, has formed the Scottish
Government since 2007.

Page 2

5.
In 2013 an Order in Council was made under section 30(2) of the Scotland Act so
as to enable the Scottish Parliament to legislate for the holding of a referendum on
independence. The Order in Council did so by modifying the definition of reserved
matters in Schedule 5 to the Scotland Act. In particular, paragraph 1 of Schedule 5
provides:“The following aspects of the constitution are reserved
matters, that is (a) the Crown, including succession to the Crown and aregency,(b) the Union of the Kingdoms of Scotland and England,(c) the Parliament of the United Kingdom,(d) the continued existence of the High Court of Justiciary asa criminal court of first instance and of appeal,(e) the continued existence of the Court of Session as a civil
court of first instance and of appeal.”
The Order in Council inserted a new paragraph 5A into Schedule 5, which provided thatparagraph 1 did not reserve a referendum on the independence of Scotland from therest of the United Kingdom if specified requirements were met. Paragraph 5A is nolonger in force.
6.
The referendum authorised by the Order in Council was held in 2014, andresulted in a majority vote against independence.
7.
The Scottish Government wishes to hold another referendum on independence.
The United Kingdom Government is unwilling to agree to the making of a further Orderin Council under section 30(2) at the present time. In those circumstances, the Scottish
Government wishes, if possible, to hold a referendum without an Order in Council, andtherefore without any modification of the definition of reserved matters in Schedule 5.

Page 3

8.
Absent legislation by the United Kingdom Parliament, the holding of areferendum requires authorisation by an Act of the Scottish Parliament. The power of
the Scottish Parliament to make legislation, described in the Scotland Act as its“legislative competence”, is limited. Section 29(1) of the Scotland Act provides that an
Act of the Scottish Parliament is not law so far as any provision of the Act is outside thelegislative competence of the Parliament. Section 29(2) lists five circumstances inwhich a provision is outside legislative competence:“(a) it would form part of the law of a country or territory
other than Scotland, or confer or remove functions
exercisable otherwise than in or as regards Scotland,(b) it relates to reserved matters,(c) it is in breach of the restrictions in Schedule 4,(d) it is incompatible with any of the Convention rights or inbreach of the restriction in section 30A(1),(e) it would remove the Lord Advocate from his position ashead of the systems of criminal prosecution and investigationof deaths in Scotland.”In relation to section 29(2)(b), as was explained earlier, reserved matters are defined in
Schedule 5. Paragraph 1(b) and (c) of that Schedule reserve “the Union of theKingdoms of Scotland and England” and “the Parliament of the United Kingdom”
respectively: see para 5 above. If legislation authorising the holding of a referendum
would relate to either or both of those matters, it would accordingly relate to areserved matter, and be outside the legislative competence of the Scottish Parliament.
9.
Sections 31 to 33 of the Scotland Act provide for the scrutiny of Bills in order tocheck that they are within legislative competence. It will be necessary to consider
these provisions in some detail. For present purposes, it is sufficient to note the termsof section 31(1):“A person in charge of a Bill shall, on or before introductionof the Bill in the Parliament, state that in his view the
Page 4

provisions of the Bill would be within the legislativecompetence of the Parliament.”
In the case of a Bill introduced by the Scottish Government, paragraph 3.4 of theScottish Ministerial Code requires that the statement under section 31(1) must havebeen cleared with the Law Officers.
10.
A Scottish Independence Referendum Bill has been drafted by the Scottish
Government. The present reference arises because the Lord Advocate considers that
she would be unlikely to have the necessary degree of confidence that the Bill does not
relate to a reserved matter to clear a Ministerial statement under section 31(1) thatthe Bill is within the legislative competence of the Scottish Parliament. Given theimportance of the issue to the Scottish Government, the Lord Advocate was requestedby the First Minister to consider referring the question whether the Bill would bewithin the legislative competence of the Scottish Parliament to this court for decision.
The Lord Advocate agreed to make such a reference.
11.
The reference has been made under paragraph 34 of Schedule 6 to the Scotland
Act, which provides:“The Lord Advocate, the Attorney General, the Advocate
General or the Advocate General for Northern Ireland mayrefer to the Supreme Court any devolution issue which is not
the subject of proceedings.”
2.

The question referred

12.

The question referred is:“Does the provision of the proposed Scottish Independence Referendum Billthat provides that the question to be asked in a referendum would be ‘Should
Scotland be an independent country?’ relate to reserved matters? In particular,
does it relate to: (i) the Union of the Kingdoms of Scotland and England(paragraph 1(b) of Schedule 5); and/or (ii) the Parliament of the United Kingdom(paragraph 1(c) of Schedule 5)?”

Page 5

3.

Is the question referred a devolution issue?

13.
Only a “devolution issue” can be referred to this court under paragraph 34 of
Schedule 6. The expression “devolution issue” is defined by paragraph 1 of Schedule 6.
So far as material, paragraph 1 provides:“In this Schedule ‘devolution issue’ means (a) a question whether an Act of the Scottish Parliament or
any provision of an Act of the Scottish Parliament is within
the legislative competence of the Parliament,(b) a question whether any function (being a function which
any person has purported, or is proposing, to exercise) is afunction of the Scottish Ministers, the First Minister or the
Lord Advocate,(c) a question whether the purported or proposed exercise of
a function by a member of the Scottish Government is, or
would be, within devolved competence,(d) a question whether a purported or proposed exercise of afunction by a member of the Scottish Government is, or
would be, incompatible with any of the Convention rights orin breach of the restriction in section 57(4),(e) a question whether a failure to act by a member of theScottish Government is incompatible with any of theConvention rights,(f) any other question about whether a function is exercisable
within devolved competence or in or as regards Scotland andany other question arising by virtue of this Act about
reserved matters.”
14.

The Lord Advocate relies on the final words of paragraph 1(f):Page 6

“any other question arising by virtue of this Act about
reserved matters.”
She maintains that the question which she has referred falls within that description.
The Advocate General maintains that it does not. His arguments in support of that
position can be considered under four headings.
(1) The Advocate General’s first argument: “arising by virtue of this Act”, or by virtue ofthe Scottish Ministerial Code?
15.
The first argument advanced by counsel for the Advocate General responds to
the Lord Advocate’s submission that the question she has referred is one “arising byvirtue of this Act”, as required by paragraph 1(f), because it arises in the course of her
performance of her function under the Scottish Ministerial Code of advising theScottish Government, and in particular the minister in charge of the Bill, on whether
the statement required by section 31(1) of the Scotland Act can be made. In response,
counsel for the Advocate General point out that the Scotland Act contains no provision
requiring the Lord Advocate to advise ministers in relation to statements made under
section 31(1). Since the Lord Advocate’s function in relation to such statements is notprescribed by the Scotland Act, a question arising in the course of performing thatfunction is not, they submit, one “arising by virtue of this Act”. A requirement imposedby the Scottish Ministerial Code has no bearing on paragraph 1(f), since neither the
existence nor the terms of the Code is prescribed by the Scotland Act.
16.
These points are fairly made in response to the way in which the Lord Advocate
initially put her case, but they are not fatal to her position as it developed, in response
to questions from the bench, during the course of the hearing. As she came to accept,
her role under the Scottish Ministerial Code does not bear on the present issue.
Whether a question is one “arising by virtue of this Act” does not depend on whether
the Lord Advocate is required by the Scotland Act to answer it. The question whether
the provisions of a Bill would be within the legislative competence of the Scottish
Parliament is one “arising by virtue of this Act” (subject to the other arguments
advanced on behalf of the Advocate General), since it is a question which arises under
section 31(1) for the person wishing to introduce the Bill, whether that be a minister ora private member. Provided the question is about reserved matters, as required byparagraph 1(f) of Schedule 6, the Lord Advocate is entitled to refer it to this court
under paragraph 34 (subject, again, to the other arguments advanced on behalf of the
Advocate General).

Page 7

(2) The Advocate General’s second argument: the scheme of legislative scrutiny
established by sections 31 and 33 would be undermined
17.
Sections 31 and 33 of the Scotland Act set out a number of provisions
concerned with the scrutiny of Bills in order to assess whether they are within thelegislative competence of the Scottish Parliament.
18.
Section 31, headed “Scrutiny of Bills for legislative competence and protectedsubject-matter”, imposes obligations upon the person who wishes to introduce a Billand upon the Presiding Officer of the Scottish Parliament. As has been explained,
section 31(1) requires that the person in charge of a Bill must make a statement, on or
before the introduction of the Bill in the Scottish Parliament, that in his or her view theprovisions of the Bill would be within the legislative competence of the Scottish
Parliament. In addition, section 31(2) requires that the Presiding Officer must decide,on or before the introduction of a Bill in the Scottish Parliament, whether or not in his
or her view the provisions of the Bill would be within the legislative competence of theScottish Parliament, and state his or her decision.
19.
Section 33, headed “Scrutiny of Bills by the Supreme Court (legislativecompetence)”, confers upon certain Law Officers the power to refer certain questionsof legislative competence to this court. In particular, section 33(1) provides:“The Advocate General, the Lord Advocate or the Attorney
General may refer the question of whether a Bill or any
provision of a Bill would be within the legislative competenceof the Parliament to the Supreme Court for decision.”
The generality of that provision is, however, cut down by section 33(2), which
provides:“Subject to subsection (3), he may make a reference inrelation to a Bill at any time during –(a) the period of four weeks beginning with the passing of theBill, and

Page 8(b) any period of four weeks beginning with any approval of
the Bill in accordance with standing orders made by virtue ofsection 36(5).”Subsection (3) is immaterial to the present proceedings. Subsection 2(b) addresses thesituation where a Bill has been approved by the Scottish Parliament following its
reconsideration after this court’s decision on a reference under section 33(1).
20.
Counsel for the Advocate General argue that it would be surprising if the United
Kingdom Parliament had set up a scheme for the reference of Bills under section 33,
but had simultaneously enabled the Law Officers to make references of Bills or
proposed Bills outside that scheme. The view that section 33 provides the only methodof scrutinising a measure for legislative competence prior to Royal Assent is, theysubmit, supported by a number of considerations, including the following:(1)
The definition of devolution issues in paragraph 1 of Schedule 6 refers to
Acts of the Scottish Parliament but contains no reference to Bills or proposed
Bills.
(2)
The Notes on Clauses which accompanied the Scotland Bill when it wasconsidered by the United Kingdom Parliament, and were published online andin hard copy, state, in relation to paragraph 34 of Schedule 6:“Paragraph 34 provides that all the principal Law Officers
may refer to the Judicial Committee [whose devolution
jurisdiction was inherited by the Supreme Court] any
devolution issue which is not the subject of proceedings. Thispower enables the Law Officers to refer any vires question to
the Judicial Committee even although it is not the subject ofa judicial dispute and has not arisen in proceedings on a Bill.”(emphasis added)
Counsel submit that the words which we have italicised indicate a lack ofintention on the part of the United Kingdom Parliament that questions about
Bills should be referable under paragraph 34.
(3)
The United Kingdom Parliament, they submit, clearly did not intend thata Bill could be referred under paragraphs 1(f) and 34 of Schedule 6 after it has
been introduced in the Scottish Parliament, yet the Lord Advocate’s analysis
Page 9lacks an explanation of why that is not possible on her interpretation of
Schedule 6. Concurrent methods of raising the same or similar points would,
they submit, be a recipe for chaos.
(4)
References under the closing words of paragraph 1(f) of Schedule 6 arelimited to questions about reserved matters. But the limits upon the legislativecompetence of the Scottish Parliament are not confined to reserved matters:that is only one of five limitations imposed by section 29(2) (see para 8 above).
The Lord Advocate’s interpretation of paragraph 1(f) would therefore result in abifurcation of issues arising in relation to the Scottish Parliament’s legislativecompetence (we shall refer to this argument as “the bifurcation point”). Issues
relating to reserved matters could, on her interpretation, be considered on areference under paragraphs 1(f) and 34 of Schedule 6 at the stage when a Bill
was in draft, but other issues relating to legislative competence could only bereferred under section 33 after the Bill had been passed. It is hard, counsel
submit, to identify any purpose which the United Kingdom Parliament might
have intended by this bifurcation, and the Lord Advocate does not attempt todo so.
(5)
The terms of an Act passed by the Scottish Parliament may differ fromthose of a proposed Bill referred under paragraphs 1(f) and 34 of Schedule 6.
For that reason also, there could be a further reference under section 33. The
Lord Advocate does not explain why the United Kingdom Parliament would
have imposed such a potential burden on the finite resources of the court.
(6)
The Lord Advocate’s approach also gives rise to the surprisingconsequence that Law Officers of the United Kingdom Government, who are
given the same power to make a reference under paragraph 34 of Schedule 6 as
the Lord Advocate, can make a pre-emptive reference of whether a legislative
proposal by the Scottish Government is outside legislative competence because
it relates to reserved matters, rather than waiting for the appropriate moment
under section 33.
21.
These submissions raise a number of matters of importance, particularly as
regards the relationship between references under paragraphs 1(f) and 34 of Schedule
6, on the one hand, and under section 33, on the other.
22.
We accept that a reference cannot be made under paragraphs 1(f) and 34 aftera Bill has been introduced in the Scottish Parliament. As we have explained, section
33(1) confers a power on Law Officers to refer a question of legislative competence inPage 10relation to a Bill to this court, but section 33(2) then confines that power to a specified
period after the passing of the Bill or its approval following an earlier reference. The
clear implication is that it is only during those specified periods that a reference to thiscourt can be made in respect of a Bill once it has been introduced. As was pointed out
in Keatings v Advocate General for Scotland [2021] CSIH 25; 2021 SC 329, para 61, thetime limits imposed on references by Law Officers under section 33(2) would be
rendered nugatory if they could make a reference under another provision of the
Scotland Act during the Bill’s passage through the Scottish Parliament.
23.
However, it does not follow that a reference cannot be made under paragraphs
1(f) and 34 of Schedule 6 before a Bill is introduced. As counsel for the Advocate
General accepted, section 33 is not inconsistent with the existence of a power to refera question relating to proposed legislation under paragraphs 1(f) and 34 prior to theintroduction of a Bill.
24.
We also accept that a bifurcation of issues relating to legislative competence isliable to arise if questions about reserved matters can be referred under paragraphs
1(f) and 34 of Schedule 6, since other issues affecting legislative competence cannot be
so referred. The consequent possibility of consecutive references raising different
issues in relation to the same Bill – first, a reference of questions about reserved
matters under paragraphs 1(f) and 34 prior to the introduction of the Bill, and secondly
a reference of other aspects of legislative competence under section 33 after the Billhas been passed - is a relevant consideration in construing Schedule 6. However, it is
not necessarily a sufficient reason for cutting down the amplitude of the language usedin paragraph 1(f) (“any other question arising by virtue of this Act about reserved
matters”), particularly since the issue might be addressed through the exercise of thecourt’s discretion to decline to accept a reference under paragraph 34. The same canbe said of the argument that a reference under paragraphs 1(f) and 34 might
conceivably be followed by a further reference under section 33 in the event that a Bill
were to be amended during its passage through the Scottish Parliament so that itraised a further question as to whether it related to a reserved matter.
25.
The other arguments advanced by counsel for the Advocate General are lesscogent. First, the fact that paragraph 1 of Schedule 6 contains no reference to Bills is
not necessarily significant, given that the terms of paragraph 1(f) are wide enough toinclude questions relating to proposed Bills.
26.
Secondly, the statement in the Notes on Clauses does not advance theargument. The statement that paragraph 34 enables the Law Officers to refer “anyvires question” could hardly be wider, and would cover the present reference. The
following words, “even although it is not the subject of a judicial dispute and has not
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arisen in proceedings on a Bill”, do not cut down the width of that statement. We donot, however, attach particular weight to the Notes on Clauses. The document wasdrafted by Government officials and has no endorsement by the United Kingdom
Parliament. It is much less significant than the language carefully chosen by the
Parliamentary drafter and enacted by Parliament. Furthermore, paragraph 1(f) ofSchedule 6 did not form part of the Bill at the time when the Notes on Clauses were
produced, and the document does not therefore refer to it.
27.
Thirdly, we see nothing anomalous about the possibility that United Kingdom
Law Officers, as well as the Lord Advocate, might refer a question about reserved
matters relating to a legislative proposal, if such a reference can be made underparagraphs 1(f) and 34. Similarly, we accept as the Lord Advocate did, that if her
construction of the scope of paragraph 1(f) is right, then it must apply equally to thepower in paragraph 4 of Schedule 6 to institute proceedings for the determination of adevolution issue in the Scottish courts. Again, we see nothing anomalous in the Law
Officers having a parallel power to choose the appropriate forum for thedetermination of a particular issue. Neither of these powers creates a risk of frivolous
or disruptive litigation given that the Law Officers can be expected to exercise thepower only in appropriate circumstances.
(3)
The Advocate General’s third argument: an alternative construction ofparagraph 1(f)28.
The Advocate General’s third argument focuses on the fact that paragraph 1(f)includes any “other” questions about devolved competence, “other” questions in or as
regards Scotland and “other” questions about reserved matters and asks the question“other than what?” The argument relates each component within paragraph 1(f) to thepreceding paragraphs 1(a) to (e). Paragraphs 1(a) to (e) bring within the term
“devolution issue” questions arising about devolved competence, in or as regards
Scotland and reserved matters in particular contexts within the Scotland Act. So, theAdvocate General argues, one must identify what else in that Act might need to be
included by paragraph 1(f) as a devolution issue “other” than questions alreadycovered by the first five sub-paragraphs.
29.
In order to understand the Advocate General’s third argument, it is helpful to
break down paragraph 1(f) into its component parts, using notional sub-subparagraphs, as follows:

Page 12“(f) (i) any other question about whether a function is
exercisable (A) within devolved competence or (B) in or as
regards Scotland and(ii) any other question arising by virtue of this Act about
reserved matters.”
Following that notional annotation, this reference is concerned with the interpretationof paragraph 1(f)(ii).
30.
Looking first at paragraph 1(f)(i)(A), Counsel for the Advocate General seek to
identify the questions about whether a function is exercisable within devolved
competence which might need to be covered by paragraph 1(f)(i)(A) because they are
not already covered by paragraph 1(a)-(e), and in particular by paragraph 1(c), which
already covers questions about whether the exercise of a function by a member of theScottish Government would be within devolved competence.
31.
Counsel for the Advocate General submit that there are a number of provisionsof the Scotland Act (sections 92(4)(c), 104(2)(c) and 106(2)(b)) which employ thephrase “within devolved competence” in defining the powers of bodies other than the
Scottish Government. The exercise of powers under those provisions does not fallwithin the ambit of paragraph 1(c) of Schedule 6, because paragraph 1(c) brings within
the definition of “devolution issue” only questions whether the purported or proposed
exercise of functions by members of the Scottish Government is or would be within
devolved competence.
32.
Against that background, counsel submit that paragraph 1(f)(i)(A) is concernedwith questions arising under the provisions listed in para 31 above, ie questions about
whether a function is exercisable within devolved competence by persons other thanmembers of the Scottish Government. Although the language of paragraph 1(f)(i)(A), if
considered in isolation, is also capable of covering questions concerning the exercise offunctions within devolved competence by members of the Scottish Government, suchquestions are likely to fall within paragraph 1(c), and therefore to be excluded from thescope of paragraph 1(f)(i)(A) by the word “other”, in the phrase “any other question”.
Given that the inclusion of the word “other” in paragraph 1(f)(i)(A) is intended torestrict that provision to functions which are not already included in paragraph 1(c),that provision must be given a more focused meaning, restricted to those provisions of
the Scotland Act where it is needed.

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33.
Counsel next follow the same process of reasoning in relation to paragraph1(f)(i)(B). The phrase “in or as regards Scotland” is used, in the context of a definitionof limited powers, in a number of provisions in the Scotland Act, besides its use in
defining legislative competence in section 29(2)(a), and hence its use, through its
incorporation by section 54, in defining devolved competence. In particular, theysubmit, it is used in relation to functions other than those of members of the Scottish
Government in sections 56(4)(a), 63(1), 88(6), 90(1) and 106(2)(a), and in paragraph L2of Schedule 5. Against that background, they submit that paragraph 1(f)(i)(B) is
concerned with questions arising under those provisions, because it is only thosequestions which are “other” than questions already within the definition underparagraph 1(c). Although paragraph 1(f)(i)(B) is also capable of covering questions
concerning the exercise of functions in or as regards Scotland by the Scottish Ministers,such questions are likely to fall within paragraph 1(c), and therefore to be excluded
from the scope of paragraph 1(f)(i)(B) by the word “other”.
34.
Counsel next follow the same process of reasoning in relation to paragraph1(f)(ii). The phrase “reserved matters” is used, in the context of a definition of limited
powers, in a number of provisions of the Scotland Act, besides its use in defining
legislative competence in section 29(2)(b), and hence its use, through its incorporation
by section 54, in defining devolved competence. In particular, they submit, it is used inrelation to non-legislative powers of the Scottish Parliament in sections 23(5) and (6),and in relation to United Kingdom ministers and cross-border public authorities in
sections 56(4)(a), 58(4)(b), 88(2)(b) and (6), and 91(3)(d). Against that background,they submit that paragraph 1(f)(ii) is concerned only with questions arising under those
provisions, and not with questions relating to the legislative competence of theScottish Parliament, which are intended to arise only under section 33, after a Bill has
been passed, or under paragraph 1(a) of Schedule 6, after legislation has beenenacted.
35.
Counsel submit that that interpretation of paragraph 1(f) is supported by the
Explanatory Notes on the Scotland Act, which state in relation to that sub-paragraph:“The questions swept up into this sub-paragraph can arise invarious circumstances. For example, there could be aquestion whether Her Majesty is making an Order in Council
within devolved competence (see note on section 118) orwhether a function is exercisable ‘in or as regards Scotland’so that it may transfer by an order under section 63 orwhether a public body is a Scottish public authority whosefunctions are exercisable only ‘in or as regards Scotland’ (seePage 14definition in section 126(1)) or whether the functions of abody relate to a reserved matter (see section 126(3)).”Counsel point out that all of the examples given, apart from the last, fall underparagraph 1(f)(i), and concern the functions of bodies other than the Scottish
Government.
36.
Since, on counsel’s analysis, paragraph 1(f)(ii) is not concerned with thelegislative competence of the Scottish Parliament, they submit that it follows that thequestion referred by the Lord Advocate falls outside the scope of that provision.
37.
We are not persuaded by this submission. The terms of paragraph 1(f) are very
wide: “any other question about whether a function is exercisable within devolved
competence or in or as regards Scotland and any other question arising by virtue of thisAct about reserved matters” (emphasis added). When paragraph 1(f) is seen in its
context, following paragraph 1(a) to (e), it has the appearance of a sweeping-up
provision, designed to supplement the more precise provisions which precede it, so as
to ensure that no gap is left. So understood, it ensures that it is possible for every
conceivable question about whether a function is exercisable within devolved
competence or in or as regards Scotland, and every conceivable question about
reserved matters, to be decided by the courts. In particular, the words “any otherquestion” would naturally be interpreted as meaning “any question, other than one
falling within paragraph 1(a) to (e)”, and therefore as covering any question about
reserved matters which is not covered by those provisions. It is understandable that
the United Kingdom Parliament should have provided a means of ensuring that every
such question is justiciable, since there could otherwise be situations where a limit on
the exercise of a function could not be authoritatively determined.
38.
That reading of paragraph 1(f), in accordance with the ordinary meaning of thewords used, is consistent with the courts’ general approach to the interpretation of the
Scotland Act, as explained, for example, by Lord Hope (with whom the other membersof the court agreed) in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61; 2013 SC(UKSC) 153 (“Imperial Tobacco”), para 14:“The best way of ensuring that a coherent, stable andworkable outcome is achieved is to adopt an approach to themeaning of a statute that is constant and predictable. This
will be achieved if the legislation is construed according tothe ordinary meaning of the words used.”
Page 15

We also note that Lord Hope said at para 33 of the same case that it would be wrong
to pay any regard to the Explanatory Notes on the Scotland Act, which were produced
by officials several years after the legislation had been enacted, and therefore did notform any part of the contextual scene of the statute.
39.
Construing paragraph 1(f) according to the ordinary meaning of the words usedis also consistent with the important function which paragraph 1 plays in the overall
scheme of the Scotland Act. It is by no means limited to defining the scope ofreferences to this court. Devolution issues can arise in any civil or criminal proceedings
in any court or tribunal in Scotland (Part II of Schedule 6), England and Wales (Part III)or Northern Ireland (Part IV), as well as being the subject of a reference by a Law
Officer to this court (Part V). The definition of a devolution issue in paragraph 1 is the
key to the raising before any court or tribunal, anywhere in the United Kingdom, of any
question arising under the Scotland Act, other than (since 2013) a question in relation
to a compatibility issue as defined by section 288ZA of the Criminal Procedure(Scotland) Act 1995, as amended (which concerns certain questions arising in criminal
proceedings in relation to Convention rights, ie rights and freedoms guaranteed by theEuropean Convention on Human Rights, and retained EU law).
40.
All of these considerations point towards treating the provisions mentioned inpara 34 above as examples of provisions under which questions can arise about
reserved matters, but not as being the only possible examples. In particular, reserved
matters also feature in the definition of the legislative competence of the Scottish
Parliament; and questions about that aspect of legislative competence may arise which
do not concern enacted legislation or Bills which have been introduced in the Scottish
Parliament, and do not therefore fall within the ambit of paragraph 1(a) or of section
33. The Lord Advocate maintains that the present case concerns a question of that
kind.
41.
In response, counsel for the Advocate General again raise the bifurcation point,
and ask why, if questions of that kind about reserved matters were intended to fallwithin paragraph 1(f), that provision does not also extend to all the other aspects oflegislative competence. There is undeniable force in this objection, and possible
explanations of why the draftsman might have singled out reserved matters would bespeculative. Nevertheless, a lack of tidiness in legislation is not unknown, and the factthat a particular interpretation would have an untidy outcome is not a fatal objection ifthat construction is nevertheless the most persuasive.
42.
In short, (1) the breadth of the language used by the United Kingdom
Parliament in paragraph 1(f), (2) the courts’ general approach to the construction of
the Scotland Act, (3) the apparent purpose that the provision should sweep up any
Page 16questions arising under the Act about reserved matters which are not covered byparagraphs 1(a) to (e), and (4) the critical role of paragraph 1(f) in relation tojusticiability, all incline us to construe paragraph 1(f) in accordance with the ordinary
meaning of the words used, rather than as being concerned only with the nonlegislative powers of the Scottish Parliament and with the functions of United Kingdom
ministers and cross-border public authorities.
(4)
The Advocate General’s fourth argument: why should there be a power to referquestions which the Lord Advocate is able to answer?
43.
Counsel for the Advocate General submit that if the Scottish Government
requires ministers to be guided by legal advice from the Law Officers when deciding
whether they can make the statement required by section 31(1), and if, as in thepresent case, the Lord Advocate is not satisfied that a Bill would be within legislativecompetence, then the result is that the Bill cannot be introduced. It is, they submit,
hard to see why this should be a matter of legal concern. The United Kingdom
Parliament, they submit, would not have intended the resources of the court to betaken up with references by the Lord Advocate of provisions which she herself cannot
confirm to be within legislative competence.
44.
We are not persuaded by this argument. Law Officers perform an important rolein providing legal advice to government, but they are not infallible. Further, as pointed
out at paras 9 and 15-16 above, the person who has to form and state the opinion
referred to in section 31(1) is the person in charge of a Bill, who may be either aminister or a private member. They too are not infallible when considering an issue oflaw regarding legislative competence. Moreover, the Law Officers, a minister or a
private member (as the case may be) may believe that there is a reasonably arguablecase that a Bill is within legislative competence, while not being sufficiently confident
to be able to state positively that it is, being mindful that this is ultimately a questionof law which only a court can resolve. However, following the practice set out in the
Scottish Ministerial Code, a Scottish Government Bill cannot be introduced, however
important it may be politically, unless the Lord Advocate is satisfied that its provisions
would be within the legislative competence of the Scottish Parliament. If the Lord
Advocate is not so satisfied, the Bill will not be introduced, and no reference can bemade under section 33. But the Lord Advocate may be mistaken, with theconsequence that a legitimate and politically important proposal for legislation will
never see the light of day. The same position may arise in relation to a Bill introduced
by a private member. Accordingly, it would be impossible to establish that a Bill whichmight in fact be within legislative competence (and as to which a Law Officer or its
introducer thought there was a reasonable argument that it was within competence)
was a proper and legitimate Bill fit to be passed by the Scottish Parliament.
Page 17

45.
It would be more consistent with the rule of law and with the intention of the
Scotland Act that the Scottish Parliament should be able to exercise its powers where
it has legislative competence for the Lord Advocate (if necessary, in the case of a
private member’s Bill, by acting at the request of that member) to be able to obtain an
authoritative judicial decision on the point. Admittedly, only a decision on the scope ofreserved matters can be obtained under paragraphs 1(f) and 34 of Schedule 6. Other
aspects of legislative competence cannot be referred under those provisions. However,
if legislation were construed so as to exclude anything short of a perfect solution, thebest would indeed be the enemy of the good.
46.
In confining the power to make a reference to Law Officers, the United Kingdom
Parliament could also be confident that such references would be made responsibly inthe public interest. That confidence is borne out by the fact that this is the firstoccasion on which a reference has been made by the Lord Advocate since the Scotland
Act came into force 23 years ago. It is also the first occasion on which any Law Officer
has referred a question in respect of a proposed Bill under any of the devolution
statutes. Any risk that the court’s resources might be unduly absorbed by suchreferences is also mitigated by its discretion to decline to accept them.
47.
For these reasons, we conclude that the question referred is a devolution issue,
and that this court accordingly has jurisdiction to decide it.
4.

Should the court decline to accept the reference?

48.
On two occasions in the past, this court has declined to decide questions
referred to it by the Attorney General for Northern Ireland under paragraph 34 of
Schedule 10 to the Northern Ireland Act 1998, which is the provision corresponding toparagraph 34 of Schedule 6 to the Scotland Act, on the basis that it possesses aninherent discretion to do so. Counsel for the Advocate General submit that the court
should exercise its discretion to decline to decide the question which is the subject ofthe present reference.
49.
The two references from Northern Ireland were very different from the present
case. In the first of those cases, Reference by the Attorney General for Northern Irelandof devolution issues to the Supreme Court pursuant to Paragraph 34 of Schedule 10 to
the Northern Ireland Act 1998 [2019] UKSC 1; [2020] NI 793, the court adjourned thereference in circumstances where inter partes proceedings were pending which would
allow most if not all of the issues to be raised, and in which the Attorney General had
the power to intervene and make a reference. Lord Kerr, giving the judgment of thecourt, explained that it was generally desirable that legal questions should be
Page 18

determined against the background of a clear factual matrix rather than as theoreticalissues of law.
50.
In the second case, Reference by the Attorney General for Northern Ireland of
devolution issues to the Supreme Court pursuant to Paragraph 34 of Schedule 10 to theNorthern Ireland Act 1998 [2020] UKSC 2; [2020] NI 820, the Attorney General sought
to challenge the compatibility of United Kingdom legislation with Convention rights, byreferring a question concerning the issuing by the devolved administration of lists ofpostcodes which were incorporated by reference into the commencement order madeby the United Kingdom Government. The United Kingdom legislation was the subjectof a direct challenge in other proceedings in England and Wales. The court refused toaccept the reference on two grounds. First, it was said, the court must retain adiscretion whether to deal with a reference on a devolution issue where that issue is to
be raised in proceedings where the claimed incompatibility of the measure with
Convention rights occupies centre stage, as opposed to its appearance via a side wind.
Secondly, it was said, although the production of the postcode lists was an act of adevolved institution, the relative isolation of that act from the introduction of theUnited Kingdom legislation threw into stark relief the inappropriateness of regarding
the preparation of the lists as an act sufficient to give rise to a devolution issue.
51.
Neither of the Northern Ireland cases arose in the same circumstances as thepresent case, but counsel for the Advocate General submit that they demonstrate thatthe court can decline to accept a reference where it is not an appropriate vehicle forthe determination of the issue in question. They argue that that is also the position in
the present case, particularly for the following reasons:(1)
Any Bill introduced into the Scottish Parliament may not be in the sameterms as the proposed Bill presently before the court, with the consequencethat the court’s decision in respect of the proposed Bill may not be
determinative. A further reference would then be necessary under section 33.
(2)
Any Bill introduced into the Scottish Parliament may be amended during
its passage, with the same consequence.
(3)
The present reference cannot deal with issues of legislative competence
which fall outside the scope of paragraph 1(f), such as whether a Bill providing
for a referendum on Scottish independence would be incompatible with section
28(7) of the Scotland Act, which protects the power of the United Kingdom
Parliament to make laws for Scotland.
Page 19

(4)A practical problem in assessing whether the provisions of a proposed Bill
would relate to reserved matters arises from the absence of the policy
memorandum and other documents which would accompany a Government Billon its introduction into the Scottish Parliament. Such documents can be taken
into account in identifying the purpose and effect of legislation, as required bysection 29(3) of the Scotland Act (set out at para 57 below): Martin v Most[2010] UKSC 10; 2010 SC (UKSC) 40, para 25.
(5)
It is inappropriate, they submit, for the Lord Advocate to treat this court
as a legal advice centre. It is a normal aspect of the responsibilities of a Law
Officer to provide legal advice to government on her own responsibility. The
substantive question in the present case is, they submit, not even one ofparticular difficulty.
52.
In support of that submission, counsel cite Yalland v Secretary of State for
Exiting the European Union [2017] EWHC 630 (Admin). That case concerned challenges
by a number of individuals to a decision by the United Kingdom Government to leave
the European Economic Area. The proceedings were brought before any such decision
had been made. The Divisional Court refused permission to apply for judicial review. It
observed at para 25:“It will rarely be appropriate to consider such issues when
they may depend in part on factual matters or future events
since until those factual matters are established or the eventsoccur, the courts will not be in a position to know with
sufficient certainty what issues do arise in a particular case.
Similarly, when matters may depend upon or be affected by
future legislation, it would generally not be appropriate to
make rulings on questions of law until the precise terms ofany legislation are known.”
Observations to similar effect were made in the cases of R (Counsel General for Wales)v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 950(Admin); [2022] EWCA Civ 118 and Keatings v Advocate General for Scotland, where
proceedings concerning the legislative competence of the Senedd and the Scottish
Parliament respectively, raised in advance of the introduction of legislation, were held
to be premature. The approach followed in these authorities is eminently sensible. As
Lord Phillips of Worth Matravers MR observed in an earlier case, the court should not
be used as a general advice centre. The danger is that it will enunciate propositions ofprinciple without full appreciation of the implications that these will have in practice: R(Burke) v General Medical Council [2005] EWCA Civ 1003; [2006] QB 273, para 21.
Page 20

53.
However, these authorities were all concerned with ordinary litigation. Theremay be greater scope for this court to entertain issues that might not otherwise beripe for decision in the context of references under its devolution jurisdiction.
Nevertheless, we accept that counsel for the Advocate General makes some powerful
points, which may often be compelling. We do not, however, find them compelling in
the circumstances of the present case. As the Lord Advocate submitted, thosecircumstances are exceptional, for the following reasons:(1)
The reference has been made in order to obtain an authoritative rulingon a question of law which has already arisen as a matter of practicalimportance. It is a question on which the Lord Advocate has to advise ministers.
The answer to the question will have practical consequences: it will determine
whether the proposed Bill is introduced into the Scottish Parliament or not. The
question is therefore not hypothetical, academic or premature.
(2)
The question relates to a proposed Bill which, the court is informed by
the Lord Advocate, the Scottish Government intends to introduce in the eventthat the court decides that it does not relate to reserved matters. All theprovisions of the Bill which are material to the question referred will, the court
is informed, be introduced in the same form as they are in before the court.
(3)
The purpose and effect of the material provisions of the Bill are apparent
without the assistance of a policy memorandum or related papers.
(4)
Given the brevity and clarity of the provision in issue in this case, and theScottish Government’s commitment and practical ability to secure its
enactment in its present form, the court does not have to be concerned in thiscase about the possibility that the Bill might be materially amended during its
passage through the Scottish Parliament.
(5)
In the circumstances of this case, the court can discount the risk that afurther reference under section 33 is likely to be needed in order to deal withmaterially different aspects of legislative competence.
(6)
As we have indicated at paras 44-45 above, we do not consider that the
Lord Advocate, in making the reference, is acting other than with a proper senseof her responsibilities. The question referred is not of a routine character. It is
understandable that the Lord Advocate should have decided that it should bereferred to this court in the public interest.
Page 21

54.

For these reasons, we conclude that the court should accept the reference.

5.

Consideration of the question referred55.
In order to decide the question referred, the court will begin by considering thearguments presented by the Lord Advocate, and the response to those arguments bycounsel for the Advocate General. We will then consider the arguments presented by
the Scottish National Party, and the Advocate General’s response.
(1) The arguments of the Lord Advocate and the Advocate General(i) Introduction
56.
The question referred was set out at para 12 above. The central issue is whether
legislation providing for a referendum on Scottish independence would relate to areserved matter. If so, it would be beyond the power of the Scottish Parliament, sincesection 29(2)(b) of the Scotland Act provides that a provision is outside the legislativecompetence of the Scottish Parliament so far as “it relates to reserved matters”: para 8
above. In terms of paragraph 1 of Schedule 5, reserved matters include “the Union of
the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom”:
para 5 above.
57.
The critical question is accordingly whether the proposed Bill would relate to
the Union of the Kingdoms of Scotland and England or the Parliament of the United
Kingdom. Section 29(3) provides, so far as material:“For the purposes of this section, the question whether aprovision of an Act of the Scottish Parliament relates to areserved matter is to be determined … by reference to the
purpose of the provision, having regard (among other things)
to its effect in all the circumstances.”
The court has repeatedly held that the phrase “relates to” indicates something morethan a loose or consequential connection: Martin v Most, para 49; Imperial Tobacco,para 16; and In re UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill [2018] UKSC 64; [2019] AC 1022; 2019 SC (UKSC) 13 (“Continuity Bill”),
para 27.
Page 22

(ii) The case that the proposed Bill relates to reserved matters
58.
In her submissions, the Lord Advocate very fairly presented to the court thearguments on both sides of the question. Counsel for the Advocate General developed
the arguments in favour of an affirmative answer, ie that the proposed Bill providing
for a referendum on the question, “Should Scotland be an independent country?”,
does relate to reserved matters and so is outside the Scottish Parliament’s legislativecompetence. The arguments advanced in favour of the conclusion that the Bill would
relate to the reserved matter of the Union of the Kingdoms of Scotland and Englandcan be summarised as follows.
59.
First, counsel noted that the court had previously held that the purpose ofparagraph 1 of Schedule 5 was that matters in which the United Kingdom as a whole
had an interest should continue to be the responsibility of the United Kingdom
Parliament: see, for example, Imperial Tobacco, para 29. That was consistent with thestatement in relation to reserved matters, in the White Paper which preceded the
Scotland Act, that “[t]he Government believe that reserving power in these areas will
safeguard the integrity of the UK”: Scotland’s Parliament (Cmnd 3658, 1997), para 3.4.
That pointed to measures which questioned the integrity of the United Kingdom being
reserved.
60.
Secondly, counsel noted the court’s previous statements to the effect that thephrase “relates to” requires more than a loose or consequential connection. A
referendum on independence would, it was submitted, have more than a loose orconsequential connection to the reserved matter of the Union of the Kingdoms of
Scotland and England.
61.
Thirdly, as to the purpose of the Bill, the court was entitled to infer from a wide
variety of background materials that the objective of the Scottish Government inintroducing the Bill would be to achieve independence from the United Kingdom. For
example, the Bill was intended to fulfil a manifesto commitment to hold a referendum“capable of bringing about independence”: Scottish National Party Election Manifesto,
Scotland’s Future, Scotland’s Choice (2021), p 12.
62.
Fourthly, as to the effect of the Bill, although the referendum would not be selfexecuting – that is to say, a majority vote in favour of independence would not
automatically result in legal change to give effect to that outcome – its practical effectwould be politically significant. A “yes” vote would, in the Lord Advocate’s submission,
support the Scottish Government’s case for negotiating independence with the United
Kingdom Government, and would place political pressure on the United Kingdom
Page 23Government and Parliament to respect the result by agreeing to independence for
Scotland. It would be difficult for the United Kingdom Parliament to ignore a decisive
expression of public opinion. A “no” vote would also be politically significant in its
impact. In the submission of counsel for the Advocate General, were the outcome of areferendum to favour independence, it would be used to seek to build momentum
towards achieving the termination of the Union and the secession of Scotland. It was inprecisely that hope that the Bill was being proposed.
63.
Counsel’s submissions in support of the case that the Bill would relate to thereserved matter of the Parliament of the United Kingdom proceeded on a similar basis.
The purpose of a referendum on Scottish independence would relate to the United
Kingdom Parliament for essentially the same reasons as it would relate to the Union.
The scope of the reservation encompassed the sovereignty of the United Kingdom
Parliament. The secession of Scotland from the Union would necessarily bring thatsovereignty in relation to Scotland to an end: the United Kingdom Parliament would nolonger be able to make laws for Scotland. A referendum on independence had the
purpose, within the meaning of section 29(3), of bringing that end about.
(iii) The case that the proposed Bill does not relate to reserved matters
64.
In support of the argument that the proposed Bill does not relate to thereserved matter of the Union, the Lord Advocate submitted, first, that although theaim of Schedule 5 was to reserve to the United Kingdom Parliament matters ofconcern to the entire United Kingdom, the holding of an advisory referendum did nottake the question of the Union out of that Parliament’s hands.
65.
Secondly, it was submitted that a different approach to the meaning of thephrase “relates to”, requiring a “close connection”, had been adopted by Lord Mance,with whom a majority of the court agreed, in In re Recovery of Medical Costs forAsbestos Diseases (Wales) Bill [2015] UKSC 3; [2015] AC 1016 (“Welsh Asbestos”), para
27. Furthermore, it was submitted, the court’s approach to the issue in the Continuity
Bill case at paras 25-33 suggested that there had to be a legal or direct practical effecton the reserved matter before the provision could be said to “relate to” it. Following
these approaches, the connection between an advisory referendum and a reserved
matter would be insufficiently close and direct.
66.
Thirdly, in relation to the purpose of the Bill, the Lord Advocate submitted thatthe court’s approach to the purposive interpretation of statutes was narrower in scopethan the approach which had been adopted to identifying the purpose of devolved
legislation in the context of section 29(2). The focus, in the former context, wasPage 24

primarily on the language used by the United Kingdom Parliament rather than on
background material. Following that approach, the purpose of the Bill, as set out inclause 1, was “to make provision for ascertaining the views of the people of Scotland”.
No wider purpose was identified. If the purpose was merely to ascertain the views of
the people of Scotland, then that related to the Union in only a loose or consequential
way.
67.
Fourthly, in relation to the effect of the Bill, it was submitted that the practicaleffects of a referendum were speculative. The court was not equipped to engage insuch speculation, and it would be constitutionally inappropriate for it to guess how theUnited Kingdom Parliament might respond if a referendum resulted in a decision infavour of independence. In any event, in referring to the effect of a provision in section
29(3), the United Kingdom Parliament should be taken to have meant the direct effectsprescribed by the legislation.
68.
Fifthly, the Scottish Parliament must, as a matter of principle, have the power toascertain the views of the electorate on particular issues by means of a referendum.
Since the Scottish Government can negotiate with the United Kingdom Government inrelation to reserved matters, for example where a section 30 order is sought, and theScottish Parliament can debate and pass motions in respect of reserved matters, it isappropriate that the power to hold a referendum should extend to reserved matters.
69.
Essentially the same argument was advanced by the Lord Advocate in supportof the proposition that the Bill would not relate to the Parliament of the United
Kingdom. Since the Bill would establish only an advisory referendum, it was submitted,
it would not restrict the powers, authority or jurisdiction of the United Kingdom
Parliament.
(iv) The court’s assessment
70.
The court has repeatedly held that the purpose of the reservation of the Unionand the United Kingdom Parliament, and the other matters listed in paragraph 1 of
Schedule 5, is that “matters in which the United Kingdom as a whole has an interest
should continue to be the responsibility of the United Kingdom Parliament at
Westminster”: Imperial Tobacco, para 29. The point was repeated in Christian Institutev Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29; [2016] HRLR 19 (“ChristianInstitute”), para 65. In Continuity Bill, para 60, the court stated that the mattersreserved by paragraph 1 of Schedule 5 are “all fundamental elements of theconstitution of the UK, and of Scotland’s place within it”. We agree with the Lord
Advocate’s submission (para 59 above) that that points towards measures which
Page 25

question the integrity of the United Kingdom being reserved. That, however, is notdeterminative. It is necessary to decide whether the proposed Bill would relate to thereserved matters of the Union and the United Kingdom Parliament, in accordance withsection 29 of the Scotland Act.
71.
In relation to the meaning of the phrase “relates to”, we are not persuaded by
the Lord Advocate’s argument (para 65 above) that there is any difference between
the approach which this court adopted in Martin v Most, para 49, Imperial Tobacco,para 16, and Continuity Bill, para 27, to the effect that the phrase indicates something
more than a loose or consequential connection, and the approach adopted by Lord
Mance in the Welsh Asbestos case. The issue there was whether the Welsh Assembly(as it then was) had the power, under the conferred powers model then in place, toimpose a charge on the insurers of persons liable to the victims of asbestos-relateddiseases, on the basis that the funds raised would be used to pay for health services.
The argument was that the legislation imposing the charge related to “Organisationand funding of national health service”. Lord Mance cited at para 25 of his judgment
the relevant dicta from Martin v Most and Imperial Tobacco. At para 27, he expressedthe view that any raising of charges permissible on that basis would have to be “moredirectly connected” with the health service provided and its funding, as would be thecase, for example, in the case of prescription charges. However, the only connection
between the imposition of the charge on the insurers and the health services provided
and their funding was alleged wrongdoing on the part of a person whom the insurer
had insured. That, said Lord Mance, was “at best an indirect, loose or consequential
connection”. The judgment does not indicate any departure from the approach
adopted in the earlier cases, or any intention to adopt a test of “direct connection”.
Nor has it been interpreted in any subsequent decision of this court as having done so.
72.
Nor does the court consider that a different approach was adopted in theContinuity Bill case. In that case, the court expressly stated that, in order to relate to areserved matter, a provision must have more than a loose or consequential connection
with it, citing the relevant dicta in Martin v Most and Imperial Tobacco: para 27. It did
not suggest that a legal or direct effect on the reserved matter was necessary.
73.
In relation to the “purpose” of a provision, ascertaining the purpose oflegislation in the context of section 29(3) is a different exercise from the purposiveinterpretation of legislation. The Lord Advocate’s argument (para 66 above) is
accordingly based on a mistaken analogy. In the context of statutory interpretation,
the court is concerned only with the objective meaning of the language used. That
requires an intense focus on the words used by the legislature, although otherbackground materials can sometimes be used as an aid to their construction. The
exercise required by section 29(3) is of a different nature. The court is not attempting
Page 26

to construe the legislation in question. On the contrary, as was said in In re Agricultural
Sector (Wales) Bill [2014] UKSC 43; [2014] 1 WLR 2622 (“Agricultural Bill”), para 50:“As the section requires the purpose of the provision to be
examined it is necessary to look not merely at what can bediscerned from an objective consideration of the effect of its
terms. The clearest indication of its purpose may be found ina report that gave rise to the legislation, or in the report of an
Assembly committee; or its purpose may be clear from its
context.”
The court also observed in that case, at para 54, that the purpose and effect oflegislation may, in this context, be “derived from a consideration of both the purposeof those introducing it and the objective effect of its terms”. Similar observations havebeen made in other cases, including Martin v Most, para 75, and Imperial Tobacco,paras 16-17. The point is well illustrated by the latter case, where the legal effect ofthe provisions under challenge was to inhibit trading in tobacco and smoking-related
products, but their real purpose – “what these provisions are really about”, as it was
put at para 43 – was to promote public health.
74.
In relation to the “effect” of a provision, we do not accept the Lord Advocate’s
submission (para 67 above) that the effect of a provision, within the meaning ofsection 29(3), is confined to the direct effects prescribed by the legislation. In the firstplace, regard is to be had to the provision’s “effect in all the circumstances”: a phrase
whose scope extends beyond purely legal effects. That is reflected in the court’s
attention to the practical consequences of the provisions in question, as for example in
Imperial Tobacco, para 39, and in Agricultural Bill, para 53, where the court referred to
the “legal and practical effects of the Bill”. Furthermore, the court has previously madeit clear that a provision does not have to modify the law applicable to a reserved
matter in order to relate to that matter: Christian Institute, paras 33 and 63.
75.
Having clarified the meaning of the terms employed in section 29(2) and (3), it isnext necessary to apply the test to the proposed Bill. In doing so, we follow thestructured analysis adopted in Imperial Tobacco, para 26, and the Continuity Bill case,para 27, and ask two questions:(1)
What is the scope of the subject-matter of the relevant matter reservedby Schedule 5?

Page 27

(2)By reference to the purpose of the provision under challenge, having
regard (among other things) to its effect in all the circumstances, does thatprovision relate to the reserved matter?
76.
In the present case, two reserved matters are relevant: the Union, and theUnited Kingdom Parliament. The scope of the reservation of the Union is sufficiently
clear for the purposes of this case from its terms: the Union of the Kingdoms of
Scotland and England. In relation to the reservation of the United Kingdom Parliament,
this court held in the Continuity Bill case, para 61, that the reservation “encompasses,
amongst other matters, the sovereignty of Parliament”.
77.
In this case, the purpose which is apparent on the face of the Bill is also what
the Bill is really about. The purpose of the Bill is to hold a lawful referendum on thequestion whether Scotland should become an independent country. That question
evidently encompasses the question whether the Union between Scotland andEngland should be terminated, and the question whether Scotland should cease to be
subject to the sovereignty of the Parliament of the United Kingdom.
78.
The effect of the Bill, however, will not be confined to the holding of areferendum. Even if it is not self-executing, and can in that sense be described asadvisory, a lawfully held referendum is not merely an exercise in public consultation ora survey of public opinion. It is a democratic process held in accordance with the law
which results in an expression of the view of the electorate on a specific issue of public
policy on a particular occasion. Its importance is reflected, in the first place, in its
official and formal character. Statutory authority is needed (and would be provided by
the Bill) to set the date and the question, to define the franchise, to establish thecampaign period and the spending rules, to lay down the voting rules, to direct theperformance of the counting officers and registration officers whose function it is toconduct the referendum, and to authorise the expenditure of the public resources
required. Statutory authority, and adherence to the statutory procedure, confer
legitimacy upon the result.
79.
That legislative framework is put in place because the result of a lawfully heldreferendum is a matter of importance in the political realm, even if it has no
immediate legal consequences. That has been demonstrated in practice by the historyof referendums in this country, and has also been recognised by this court. For
example, in relation to the 2014 referendum on Scottish independence, Lord Hodge
stated in Moohan v Lord Advocate [2014] UKSC 67; 2015 SC (UKSC) 1; [2015] AC 901,
para 17, with the agreement of the majority of the court, that “the referendum is avery important political decision for both Scotland and the rest of the United
Kingdom”. In relation to the 2016 referendum on leaving the European Union, thePage 28

majority of the court stated in R (Miller) v Secretary of State for Exiting the European
Union [2017] UKSC 5; [2018] AC 61, para 124:“[T]he referendum of 2016 did not change the law in a way
which would allow ministers to withdraw the United
Kingdom from the European Union without legislation. Butthat in no way means that it is devoid of effect. It means that,unless and until acted on by Parliament, its force is politicalrather than legal. It has already shown itself to be of great
political significance.”80.
The Lord Advocate herself, in her written submissions to the court, describes
the issue raised by the reference as “one of exceptional public importance to thepeople of Scotland and the United Kingdom”, as of “considerable practicalimportance”, and as “a question of fundamental constitutional and public
importance”. Those submissions contrast with the argument advanced elsewhere in
the same document that the proposed Bill would have “limited legal and practicaleffect”, that it “relates to the Union in only an indirect or consequential way”, and that“[a]ny practical effects beyond ascertaining the views of the people of Scotland are
speculative, consequential and indirect and should not properly be taken into
account”. The former submissions reflect a more realistic assessment.
81.
A lawful referendum on the question envisaged by the Bill would undoubtedly
be an important political event, even if its outcome had no immediate legal
consequences, and even if the United Kingdom Government had not given any politicalcommitment to act upon it. A clear outcome, whichever way the question was
answered, would possess the authority, in a constitution and political culture founded
upon democracy, of a democratic expression of the view of the Scottish electorate.
The clear expression of its wish either to remain within the United Kingdom or to
pursue secession would strengthen or weaken the democratic legitimacy of the Union,
depending on which view prevailed, and support or undermine the democratic
credentials of the independence movement. It would consequently have important
political consequences relating to the Union and the United Kingdom Parliament.
82.
Turning, then, to the question whether the Bill relates to the Union, anddetermining that question by reference to the purpose of the Bill, having regard to its
effect in all the circumstances, we are in no doubt as to the answer. It is plain that a Bill
which makes provision for a referendum on independence – on ending the Union – hasmore than a loose or consequential connection with the Union of Scotland andEngland. That conclusion is fortified when regard is had to the effect of such areferendum. As we have explained at para 74 above, it is not only legal effects that are
Page 29relevant in the context of section 29(3). A lawfully held referendum would be apolitical event with political consequences. It is equally plain that a Bill which makes
provision for a referendum on independence – on ending the sovereignty of the
Parliament of the United Kingdom over Scotland - has more than a loose orconsequential connection with the sovereignty of that Parliament.
83.
For these reasons, we reject the Lord Advocate’s submissions that the proposed
Bill does not relate to reserved matters.
(2) The Scottish National Party’s additional arguments: self-determination and theprinciple of legality
84.
In addition to adopting the submissions made by Lord Advocate in support ofthe legislative competence of the Scottish Parliament in relation to the proposed Bill,the intervener, the Scottish National Party, makes further submissions founded on theright to self-determination in international law and the principle of legality in domesticlaw.
85.
The intervener submits that the right to self-determination is a fundamental
and inalienable right in international law and that there is a strong presumption infavour of the interpretation of domestic legislation in a manner which is compatible
with international law. While a narrow reading of the phrase “relates to” in section
29(2)(b) of the Scotland Act would render within competence a non-self-executing
referendum in accordance with the right of the Scottish people to self-determination, abroad reading of that phrase would be incompatible with that right. It is submitted
that where two possible readings of a statutory provision are available, one of which iscompatible with international law and the other of which is not, the former should be
preferred. In support of this submission the intervener relies upon article 1 of theUnited Nations Charter which provides that one of the fundamental purposes andprinciples of the United Nations is “to develop friendly relations among nations basedon respect for the principle of equal rights and self-determination of peoples”. It
further relies on General Assembly Resolution 1514 of December 1960 which states, atpara 2:“All peoples have the right to self-determination; by virtue ofthat right they freely determine their political status andfreely pursue their economic, social and culturaldevelopment.”

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This statement is repeated in the International Covenant on Economic, Social andCultural Rights (1966) and the International Covenant on Civil and Political Rights(1966).
86.
The Advocate General does not dispute that the United Kingdom recognises andrespects the right of self-determination in international law. However, he submits thatthe intervener fails to make good its implicit and necessary assertion that the right toself-determination in international law obliges the United Kingdom to make provision,
either through the terms of the Scotland Act or otherwise, for a further advisoryreferendum on Scottish independence in the terms of the proposed Bill. In particular,
the Advocate General submits that the principle of self-determination has no
application here. Secondly, he submits that nothing in the Scotland Act, which is the
only relevant statutory scheme on this reference, breaches the right to selfdetermination, regardless of the interpretation given to it on this reference.
87.
The strong presumption in favour of interpreting our domestic law in a way
which does not place the United Kingdom in breach of its obligations in internationallaw is well established. (See, for example, R v Lyons [2002] UKHL 44; [2003] 1 AC 976
per Lord Hoffmann at para 27; Assange v Swedish Prosecution Authority [2012] UKSC
22; [2012] 2 AC 471 per Lord Dyson at para 122.) If there is ambiguity in a statutory
provision operating in a field where the United Kingdom is bound by a treaty
obligation, the presumption of conformity with international law will apply to theinterpretation of that statutory provision (Salomon v Commissioners of Customs andExcise [1967] 2 QB 116 (“Salomon”), per Diplock LJ at p 143). This presumption ofcompatibility extends to international treaty obligations whether or not they havebeen implemented into domestic law within the United Kingdom (R v Secretary ofState for the Home Department, Ex parte Brind [1991] 1 AC 696 per Lord Bridge at pp
747-748, per Lord Ackner at p 760 (concerning the European Convention on Human
Rights, which at that date had not been implemented into domestic law); Bennion,
Bailey and Norbury on Statutory Interpretation, 8th ed (2020), section 26.9; Shaheed
Fatima, “The Domestic Application of International Law in British Courts”, in Curtis
Bradley, ed, The Oxford Handbook of Comparative Foreign Relations Law (2019) at pp494-495; James Crawford, Brownlie’s Principles of Public International Law, 9th ed(2019), p 62, citing Diplock LJ in Salomon at p 143). However, the presumption will only
be a permissible aid to interpretation if the statutory provision is not clear on its face
(Salomon per Diplock LJ at p 143; JH Rayner (Mincing Lane) Ltd v Department of Tradeand Industry [1990] 2 AC 418, per Lord Templeman at p 481; R (SG) v Secretary of State
for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449, per Lord Hughes at para
137, per Lord Kerr at para 239).

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88.
There are insuperable obstacles in the path of the intervener’s argument basedon self-determination. First, the principle of self-determination is simply not in playhere. The scope of the principle was considered by the Supreme Court of Canada in the
Reference re Secession of Quebec [1998] 2 SCR 217. There, the Governor in Council
referred a series of questions to the Supreme Court including whether there exists aright to self-determination under international law that would give Quebec the right tosecede unilaterally. In its judgment the Supreme Court explained (at paras 136-137)
that Canada was a sovereign and independent state conducting itself in compliancewith the principle of equal rights and self-determination of peoples and thus possessedof a government representing the whole people belonging to the territory without
distinction. It considered that the then current constitutional arrangements within
Canada did not place Quebecers in a disadvantaged position within the scope of theinternational law rule. It continued:“In summary, the international law right to selfdetermination only generates, at best, a right to external selfdetermination in situations of former colonies; where apeople is oppressed, as for example under foreign militaryoccupation; or where a definable group is denied
meaningful access to government to pursue their political,
economic, social and cultural development. In all threesituations, the people in question are entitled to a right toexternal self-determination because they have been denied
the ability to exert internally their right to self-determination.
Such exceptional circumstances are manifestly inapplicableto Quebec under existing conditions.” (at para 138)
It went on to say that in other circumstances peoples were expected to achieve selfdetermination within the framework of their existing state:“A state whose government represents the whole of thepeople or peoples resident within its territory, on a basis ofequality and without discrimination, and respects theprinciples of self-determination in its internal arrangements,
is entitled to maintain its territorial integrity underinternational law and to have that territorial integrity
recognized by other states. Quebec does not meet thethreshold of a colonial people or an oppressed people, nor
can it be suggested that Quebecers have been denied
meaningful access to government to pursue their political,
economic, cultural and social development. In the
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circumstances, the National Assembly, the legislature or thegovernment of Quebec do not enjoy a right at international
law to effect the secession of Quebec from Canada
unilaterally.” (at para 154)89.
In our view these observations apply with equal force to the position of
Scotland and the people of Scotland within the United Kingdom. They are also
consistent with the United Kingdom’s submission to the International Court of Justicein the case of Kosovo, adopted by the intervener as part of its submissions in thepresent case: “To summarise, international law favours the territorial integrity of“States. Outside the context of self-determination, normally limited to situations ofcolonial type or those involving foreign occupation, it does not confer any ‘right tosecede’”: Written Proceedings in relation to UN General Assembly Resolution 63/3
(A/RES/63/3) (8 October 2008), Written Statement of the United Kingdom in responseto the Request for an Advisory Opinion of the International Court of Justice on the
Question, ‘Is the unilateral declaration of independence by the Provisional Institutionsof Self-Government of Kosovo in accordance with international law?”, (17 April 2009),
para 5.33. The submission went on to state that international law does not, in general,prohibit secession; but the relevant point, in relation to the intervener’s submission
based on a right of self-determination under international law, is the absence ofrecognition of any such right outside the contexts described by the Supreme Court of
Canada, none of which applies to Scotland.
90.
Secondly, the intervener relies on the principle of self-determination ininternational law as an interpretative tool supporting a narrow reading of the words“relates to” in section 29(2)(b) so as to give a more limited scope to the limitation oflegislative competence relating to reserved matters. However, no reading of that
subsection, whether wide or narrow, could result in a breach of the principle of selfdetermination in international law. The Scotland Act allocates powers between the
United Kingdom and Scotland as part of a constitutional settlement. It establishes acarefully calibrated scheme of devolution powers. Nothing in the allocation of powers,
however widely or narrowly interpreted, infringes any principle of self-determination.
On the contrary, the legislation establishes and promotes a system of devolution
founded on principles of subsidiarity. It is now well established that devolution
legislation such as the Scotland Act falls to be interpreted like any other statute,subject to the rules of interpretation set by the Act itself (see, for example, section
29(3) and (4)). It would be inappropriate to apply any interpretative presumption withthe purpose of achieving a greater or lesser devolution of powers.

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91.
For the same reasons, the principle of legality does not avail the intervener.
Nothing in the allocation of powers under the Scotland Act infringes the principle oflegality.
6.

Conclusion

92.

We therefore answer the reference as follows:(1)
The provision of the proposed Scottish Independence Referendum Billthat provides that the question to be asked in a referendum would be “Should
Scotland be an independent country?” does relate to reserved matters.
(2)
In particular, it relates to (i) the Union of the Kingdoms of Scotland andEngland and (ii) the Parliament of the United Kingdom.

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